I am continuing my quest to find a way for my soon-to-be hubby to remain in the US after his 90 visa waiver expires and before we fly to Sydney to do DCF. Does anyone know if he can stay over the 90 days if we get married and file a 1-130 before the expiration? The plan would be to proceed with DCF... Thank you--this is a complicated one.

Trina

If you file I-130 + I-485 (it's the combo that 'stops the clock') and try to withdraw it in favor of a DCF, you are asking for a world of problems. A very nice guy here is facing a similar problem now, and his applications have fallen into the proverbial black hole.

If your boyfriend overstays the VWP, you are adding a complication to your case.

The VWP can not be extended, and can not be reset by visiting Canada, Mexico or the 'contiguous area' (Caribbean/C America).

Talk about have your cake AND eat it too....

It does not seem complicated to me; he should leave at the end of his 90 days and you'll catch up shortly, in Australia.

Thanks for the info. I am not clear, though -- do I have to file the I-485 to stop the clock? Or can I wait (i.e. postpone) until we can get to Oz... That is what I don't understand.... Our problem is that I might not be able to get there for a while and would like to buy some time if possible...

You don't file I-485---you're a US citizen, right? And why would you file an I-485 in Sydney?

I guess the shortest sweetest answer is: No, there is no way to buy additional time on the VWP. And overstaying it would be a mistake in my mind, but you're free to explore what the pentalties are for less than 180 days of overstay.

You haven't really said what your goals are... I've seen a couple of posts from you about border jumping and doing some other ideas.. you might want to think about (or state it, if you've already thunk) what your objective is. I can't really tell what is the most important outcome to you.
Different processes have different plusses and minuses. Have you met with a lawyer to evaluate your options? Do you know what all your options are?

Here's what I would do in your situation.

1. DONT have him overstay. It wil only cause you problems. Send him home.
2. Save money and you'll have to be apart for a bit - but we all have had to do it and you'll be fine.
3. Start the DCF process
4. Buy a ticket to Oz (Air New Zealand has a great deal right now...)
5. Fly over and do DCF and come home together.

IMHO

The Sydney consulate is so quick when it comes to processing dcf cases, I want to know why anyone would even do something as risky as this?

Just to give you an idea, my husband and I mailed our forms for preprocessing of our case in the last week of November, requesting any date before the second week in January. Two days after the consulate recieved our forms in the mail, we got a call for them saying they scheduled us for an interview on the 9th of December, only SIX days after our wedding. Our entire case took about two and a half weeks to process.

okay, so you'll have to be apart for a bit if you can't stay an extended period in AU like I've been. but I know what the seperation is like, I had to be apart from my husband for about five months before we got married. It was painful, but I would've rathered that then one of us overstaying one of our visas. It'll only cause more problems in the long run. It's just not worth it, in my opinion.

you're very fortunate to be going through one of the fastest consulates- maybe if you were going to go through a slower consulate and/or pursuing the visa another route I could be a bit more sympathetic (yet not condoning). but my advice is to play it a bit safer and be thankful that you're case is likely to go quicker than most people who encounter the immigration process.

If you fly to Canada, then fly back, it is possible to get another 90 days of VWP. Because when you fly out, the airline keeps the I-94 stub, and you need to fill in a new one when you re-enter. This is differenet from a land crossing, where you can re-enter for the remainder of your initial 90 days. This must be a common thing to happen, when I flew into Toronto the Canadian Customs guy asked me why I wasn't returning the same day!

However, be prepared for a very extensive questioning during pre-departure clearance back to the USA, in particular how you can afford to be in the USA for such an extended period of time, away from your job etc.

JubJub, I don't think that's wise advice. My gut feeling is that you could (and most likely would) still only be readmitted until the date of the VW stamp in your passport.

The only other alternative I can see is to try for a B2, but I'm pretty sure that one would have to go and interview in their home country for that.

I agree, it's certainly not the best option for the original poster. But it is possible. In my case my 90 days expired whilst I was in Canada, so they had no option but to issue another. It helped that I had a return ticket back to Aus.

Well yeah they did have another option....they could of denied you one

Oh yes, you could tell she (I've found female border agents to have a nasty attitude) wanted to deny me entry. But the fact that I had numerous VWP entries, and never overstayed, meant she had no legal basis to deny me.

In fact it was the customs guy that gave me the hardest time, wanted to know why I only had a day or two worth of luggage. He was writing down the answers to questions he posed of me. Who was I going to visit? Where does she work? Quite intimidating. But once he checked my bag and found nothing dangerous, he was quite friendly.

Umm she actually does have a legal basis to deny you... Section 214 B of the Immigration and Naturilization Act states that all aliens are assumed to have immigrant intent. Any alien who does not prove otherwise to the satisfaction of the officer is denied entry as individuals with immigrant intent require an immigrant visa to enter the US.